Avtar Singh vs Commissioner, Jullundur Division and others .

M.M. Punchhi, J. (Oral)

This petition under Article 226 of the Constitution is directed against the order of the Commissioner, Jullundur Division, Jullundur (Annexure P.8), whereby the petitioner was ordered to be ejected from a piece of agricultural land under section 7 of the Punjab Village Common Lands (Regulation) Act, 1961, since the said land in the revenue papers stood in the name of the Gram Panchayat Kariha, respondent No.4.

The matter as raised is essentially one of jurisdiction. The petitioner avers that 26 Kanals of agricultural land detailed in lease deed, P. 1, and receipts, P.2 to P.3, as Khasra No. 83 (8K11 M.) and Khasra No 87 (17K10 M.) in village Kariha were leased out by the Punjab Wakf Board to the father of the petitioner. On the latter''s death, the petitioner and his brother continued as lessees of the said land and kept paying rent from time to time. The Gram Panchayat, respondent No. 4, moved an application under section 7 of the Punjab Village Common Lands (Regulation) Act against the father of the petitioner before the Assistant Collector. Ejectment was ordered on 28.11.1975 vide order, Annexure P.4. Apparently, in the meantime, the father of the petitioner died and he and his brothers, were unable to file an appeal within time. Belated by two days, they filed an appeal to the Collector successfully who condoned the delay and upset the order of the Assistant Collector on 24.6.1977 vide order, Annexure P. 6. The said order of the Collector was upset by the Commissioner on 20.6.1978 vide order, Annexure P. 9. This has given rise to the petitioner approaching this Court.

The sheetanchor of the petitioner is a notification issued by the Government of India under section 5(2) of the Central Government''s Wakf Act, 1954 read with rule 4 of the Punjab Wakf Rules, 1964 dated 6.2.1971. Thereunder some land inclusive of the land in dispute bearing Khasra Nos. 83 and 87 in village Kariha, described in the revenue papers as graveyard, has been declared as wakf property governed under that Act. On the strength thereof, the petitioner could unsuccessfully resist the eviction before the Collector on the premises that the aforesaid notification held sway over the entry in the revenue record showing the land to be owned by the Gram Panchayat. The petitioner had also successfully explained the delay in the filing of the appeal before the Collector. The Commissioner, however, has vide his impugned order, Annexure P.8, given predominance to the revenue records and has held the view of the Collector condoning the delay of two days in filing the appeal to be erroneous.

A bare look at the provision of the Wakf Act, 1954 makes it plain that a preliminary survey of wakfs has to be done by the Commissioner appointed by the State Government for the purpose (see Section 4). The Commissioner after making an inquiry submits his report in respect of Wakf existing at the date of the commencement of the Act in the State or any part thereof. On receipt of a report under section 4, the State Government is required to forward a copy of the same to the Board which is subjected to examination and then published in the Official Gazette. Under section 6(4), the list of wakfs published under subsection (2) of section 5 is to be final and conclusive unless it is modified in pursuance of a decision of the Civil Court. Undisputably, the State Government of Punjab through the agency of the Commissioner had enlisted the property in dispute to be wakf property. It had been reported to the Board as such and has been publicised in the Central Government Gazette. The fact that it is wakf property is by virtue of section 6 final and conclusive. In other words, it means that it is wakf property without any evidence or proof. In face thereof, the revenue entries depicting the land as belonging to the Gram Panchayat at best raised a presumption of truth, but necessarily rebuttable. And what better material could be there to rebut that presumption than the notification afore referred to. In this view of the matter, the assumption of jurisdiction by the authorities under the Punjab Village Common Lands (Regulation) Act so as to evict the petitioner from the land in dispute was totally beyond their power. In such width of the matter, the small delay in filing the appeal should have lost its significance; all the more when the discretion had been exercised by the Collector in entertaining the appeal, which discretion should not have been upset by the appellate Court of the Commissioner, unless the view taken by the Collector was totally perverse and no reasonable man could have taken that. Thus, it seems to me that the view expressed by the Commissioner in assuming jurisdiction over the land is totally unsustainable in the eye of law, and since such error is patent on the face of the record, the impugned order deserves to be quashed by issuing a writ of certiorari.

The net result is that this petition succeeds. The impugned order, Annexure P.8, is quashed as also the proceedings in their entirely. There shall be no order as to costs in the event.